Please, Don’t Put It In Writing

I know we lawyers are always saying, “Get It In Writing”. Sometimes, this can be a bad thing. Especially in a criminal case, when it comes to scientific evidence, we defense attorneys do not want everything in writing. Why, you ask?

In the State of Florida, someone accused of a crime may elect to “participate in discovery”. This is a fancy term meaning that the defense attorney files something with the prosecutor saying “show me everything you got”. Once a defense attorney files a demand for discovery, the prosecution turns over everything they’ve got. Every police report. Every written statement. Every lab report. The names and addresses of every witness. Every picture taken in the case. Every video. Every fingerprint card. Every photo line-up. Everything. But, the problem with electing to participate in discovery is that it’s a two way street–now the defense must also turn over almost every document they have as well. I say almost because the discovery rules between the prosecution and defense counsel are not a mirror image–but they are a mirror image when it comes to experts. Everything having to do with an expert is a mirror image obligation for those that participate in discovery.

In my experience, 99% of all Florida criminal defense attorneys “participate in discovery”. I know one local guy who never has, and never will. That means, he has never conducted a deposition of a state witness (because doing a deposition counts as “participating in discovery”). The reason he doesn’t participate is: (1) he must then turn over everything he has to the state, and (2) he can usually obtain documents regarding the case from a public records request. Remember also, when a defense attorney opts out of discovery, he is not obligated to list the witnesses he will call at trial. So, the state has no idea what witnesses he may have, or what experts he may have because providing witness names is only required as part of discovery participation. Ah yes, the sweet element of surprise.

So, now you know how 1% of the criminal defense attorneys out there do not participate in discovery, let’s get back to the 99% who do participate in discovery.
Not everything in a case must be turned over to the other side as part of “discovery”. An attorney’s “work product”, for example, is not subject to disclosure: “Disclosure shall not be required of legal research or of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the prosecuting or defense attorney or members of their legal staffs.” Rule 3.220(g)(1).
But there’s a grey area.

In the recent case of Kiddler v. State (Fla. 2nd DCA, 2D12-3535, June 12, 2013), Kiddler was charged with DUI manslaughter and vehicular homicide based upon an auto accident in which Kiddler’s blood registered a 0.196 percent, according to the government’s lab analysts. Ok, that’s fine. But, do any of us trust the “quality” of government laboratories? The scandals are too numerous to list here, but if you’ve been watching the news in recent years you’ve probably heard about the 500 cases dismissed by San Francisco prosecutors due to problems with a crime lab analyst. And, what about the New York State’s Inspector General’s report which amounts to 100+ page beat down of their poor laboratory practices. One inspector in New York’s state lab was found to have fraudulently falsified at least one third of his reports over his 15 years of employment! Anyway, you get the picture here, right? If a government lab accuses you of something as serious as DUI manslaughter, don’t you think you’d get a second opinion?

Well, that’s just what Kiddler did, she did the right thing. Her defense attorney requested part of her blood sample be tested by a lab of their choosing, and the court ordered the state to turn over some unused blood so that the defense could conduct their own testing. But, here’s the problem–they got the results in writing. Now, think back to the discovery rules which require that both sides turn over anything in writing. The state demanded the defense attorney turn over the written report, and the Second DCA agreed, thus requiring defense counsel to give the state attorney a copy of the lab’s findings. Ouch.

As a side note: When obtaining an expert witness, try to get the expert to give two prices–one price for a phone consultation, extra funds if a written report is requested. It is best to simply call the expert before any written report is drafted, because, once you’ve got a written report–you must turn it over. Most criminal defense attorneys have received that call from an expert that goes something like this: “hey, um, you don’t want to pay extra to put my findings in writing, trust me.” Ok, that’s all I need to know. Also, we criminal defense attorneys don’t deal with experts on a daily basis. As such, its only once you speak to them that you really get a feel for whether or not you trust their findings, and whether or not the expert is going to make a good witness.

The court in Kiddler seems to imply that oral discussions between an expert and defense counsel is done only to evade discovery rules, and that’s not the case. Here’s what the concurring opinion noted: “it may be relatively easy for the defense to evade any obligation under the reciprocal discovery rule to disclose such materials to the prosecution. Defense counsel may request the expert to make any report of a “bad” result orally and to provide a written report only if the result is favorable to the defense.” No, simply talking to an expert saves money. Go tell an expert to draft a 30 page opinion and see what that costs, versus simply discussing the matter over the phone for a few minutes. Please. Most defense attorneys do not have the unlimited government budget that prosecutors have at their disposal.

The appeals court all but admits what a bad decision they’ve made in the Kiddler case. Basically, what’s bad about it is that defense counsel should–in a perfect world–only have to turn over documents or statements made that are going to be used by witnesses at trial (that’s the rule in Federal court…). But their opinion requires us to turn over independent second opinion reports, even those not to be used in trial! The court explains:

“the publication of the court’s decision in this case is likely to change the legal landscape for both prosecutors and defense counsel. Prosecutors will now be encouraged to seek, and defense counsel may be obligated to disclose, the reports and statements of experts whether or not the defense intends to use them at trial. The decision in this case may provide the prosecution with a limited and short-term tactical advantage in Ms. Kidder’s case. However, I believe that our decision will have negative effects in the long term for the criminal defense bar, the State, and the courts.”

Luckily, the court also proposes a reasonable solution: change the discovery rule regarding expert statements and reports to only require disclosure when the expert is going to be used at trial. Pretty simple, right? Do you think our legislature will ever actually do such a thing? Don’t hold your breath.